Citation Nr: 1741817 Decision Date: 09/22/17 Archive Date: 10/02/17 DOCKET NO. 13-25 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an a rating in excess of 20 percent for lumbar spine spondylosis prior to March 17, 2016, and in excess of 40 percent since that date. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Getz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to June 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a May 2015 decision, the Board remanded the issue of entitlement to an increased disability rating in excess of 20 percent for lumbar spine spondylosis for additional development. The Board further remanded the issue of entitlement to an increased rating in excess of 10 percent for residual fracture right os calcis hallux valgus and arthritis of the distal toes and plantar calcaneal spur to the Agency of Original Jurisdiction (AOJ) for issuance of a statement of the case (SOC). The AOJ issued a SOC which continued to deny a rating in excess of 10 percent for the Veteran's right foot disability for the period on appeal. The Veteran did not respond to the SOC by submitting a VA Form 9. Although the RO subsequently (and erroneously) issued a VA Form 8 certifying the Veteran's right foot disability along with his claim for lumbar spine spondylosis, the Board notes that the issuance of this Form was for administrative purposes only, and did operate to confer jurisdiction over the issue of the Veteran's right foot disability. 38 C.F.R. § 19.35 (2016). As the Veteran did not perfect his appeal with regard to the August 2014 rating decision denying a rating in excess of 10 percent for his right foot disability, that decision is now final and will not be addressed in this decision. 38. C.F.R. §§ 20.302, 20.1103 (2016). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. For the period prior to March 17, 2016, the Veteran's lumbar spine spondylosis has been characterized by pain, localized tenderness, weakened movement, limitation of motion, disturbance of locomotion, and abnormal gait; forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months have not been shown. 2. For the period since March 17, 2016, the Veteran's lumbar spine spondylosis has been characterized by pain, localized tenderness, weakened movement, guarding, muscle spasm, abnormal gait, limitation of motion, and forward flexion of the thoracolumbar spine to 30 degrees; unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months have not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar spine spondylosis for the period prior to March 17, 2016, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5237, 5243 (2016). 2. The criteria for a rating in excess of 40 percent for lumbar spine spondylosis for the period since March 17, 2016, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5237, 5243 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking an increased rating for his service-connected lumbar spine spondylosis. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2016). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. With regard to functional loss, 38 C.F.R. §§ 4.40 (2016) provides that such loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.10, 4.40, 4.45 (2016); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (2016) (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or misaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2016). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to March 17, 2016 For the period prior to March 17, 2016, the Veteran received a 20 percent rating for his back disability under 38 C.F.R. § 4.71a, DC 5237 (addressing lumbosacral or cervical strain). Ratings under this diagnostic code are assigned based on the General Rating Formula for Diseases of the Spine or incapacitating episodes, whichever results in the higher evaluation. Under these bases, a rating in excess of 20 percent is warranted when the evidence shows: * Forward flexion of the thoracolumbar spine to 30 degrees or less; or * Favorable ankylosis of the entire thoracolumbar spine; or * Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243 (2014) (all 40 percent). Ankylosis is defined as the "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes defines an "incapacitating episode" as a "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." See 38 C.F.R. § 4.71a (2016). Based on the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for the period prior to March 17, 2016. Specifically, at a VA examination in November 2012, the Veteran reported chronic pain aggravated by the movements of stooping, twisting, and standing while at work. Upon examination, the Veteran's forward flexion was 60 degrees and there was a measurable range of motion in all other directions. Localized tenderness and abnormal gait were present. The examiner noted functional loss attributable to weakened movement, pain on movement, and disturbance of locomotion. No additional function loss was noted upon repetitive-use testing. Private treatment records from 2012 through 2016 demonstrate that the Veteran's back disability manifested primarily be chronic low back pain, localized tenderness, and abnormal gait. Specifically, X-rays on February 2013 revealed minimal anterolisthesis of the L4 and L5. Treatment notes during this period are silent for any evidence of decreased range of motion due to the Veteran's back disability. In their totality, VA and private treatment records do not support the assignment of a disability picture greater than 20 percent for the Veteran's lower back disability for the period prior to March 17, 2016. Specifically, the Veteran did not display ankylosis, forward flexion limited to 30 degrees or less, or incapacitating episodes as defined by Note 1 for the formula for rating intervertebral disc syndrome. Thus, the evidence does not warrant a rating in excess of 20 percent prior to March 17, 2016. Since March 17, 2016 In a March 2016 rating decision, the Veteran's disability rating was increased to 40 percent effective March 17, 2016. In order to warrant a rating in excess of 40 percent under this formula, the evidence must show: * Unfavorable ankylosis of the entire thoracolumbar spine (50 percent under 5237); or * Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent under DC 5243) 38 C.F.R. § 4.71a, DC 5237 (2016). Based on the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted for the period since March 17, 2016. Specifically, at the Veteran's March 2016 examination, he reported chronic back pain that resulted in his need to wear a back brace constantly. Upon examination, the Veteran's forward flexion was 30 percent and there was a measurable range of motion in all other directions. The Veteran experienced pain on movement, weight bearing, and after repetitive-use testing. Muscles spasms, guarding, and localized tenderness were found to contribute to an abnormal gait. Intervertebral disc syndrome, ankylosis, or incapacitating episodes were not noted. The examiner noted pain, weakness, fatigability, and incoordination contributed to functional loss. Based on the evidence of record, the Board determines that a rating in excess of 40 percent is not warranted for the period since March 17, 2016. Specifically, the 2016 examiner specifically observed the absence of ankylosis, intervertebral disc syndrome, and incapacitating episodes. Therefore, the criteria for a rating in excess of 40 percent have not been shown for the period since March 17, 2016. Neurological Abnormalities Next, when evaluating the extent of the Veteran's back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71 (2016). In this case, there is limited objective medical evidence of neurological abnormality associated with the Veteran's low back disorder. Specifically at a VA examination in November 2012, the Veteran's reflexes and sensory functioning were normal. No evidence of radiculopathy or neurological abnormalities was shown. Although private treatment records from 2013 indicate that the Veteran complained of pain radiating down both extremities, he specifically denied numbness or tingling. At his most recent examination in March 2016, the Veteran's sensory functioning and reflexes were normal. While muscle strength testing showed some resistance, test results were otherwise normal. The examiner specifically noted the absence of radiculopathy or any other neurological abnormality. Thus, based on the objective medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a bowel or bladder impairment or any other neurological abnormality associated with his low back disorder. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In light of these facts, the preponderance of the evidence is against an increased rating in excess of 20 percent for the period prior to March 17, 2016, and in excess of 40 percent since that date, for the Veteran's service-connected low back disorder. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3 (2016). For these reasons, the claim is denied. The Board also finds that consideration for an extraschedular evaluation, a component of the Veteran's claim for increased ratings, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of the Veteran's relevant symptoms related to the issue on appeal, to include the Veterans description of how his symptoms impact his daily life. After considering this evidence, the Board concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, in view of the Board's responsibility to consider functional loss when assigning the appropriate rating for musculoskeletal disorders, the Board finds that the applicable diagnostic codes are already interpreted so broadly such that it is virtually impossible that any potential symptom would not be contemplated. See DeLuca, 8 Vet. App. at 202. As such, the Veteran's symptoms are not so unusual as to be outside the schedular rating criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014). 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must also obtain all records of medical treatment or examination at VA facilities. 38 U.S.C.A. § 5103A(c)(2) (West 2014). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of these examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the Board notes that this appeal was remanded in May 2015 to obtain a new VA examination. To the extent the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet App. 141, 146-47 (1999). Specifically, the Veteran was provided with a VA examination in March 2016, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in April 2016. Accordingly, the Board finds that the Remand directive was substantially complied with. Thus, there is no Stegall violation in this case. For the reasons cited above, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A rating in excess of 20 percent for lumbar spine spondylosis for the period prior to March 17, 2016, is denied. A rating in excess of 40 percent for lumbar spine spondylosis for the period since March 17, 2016, is denied. REMAND Accordingly, the case is REMANDED for the following action: As for the Veteran's claim for TDIU, although it was previously denied by the RO, the Veteran's March 2016 VA examination indicates that his disability picture has changed since that time. As such, the claim has effectively been re-raised since the time it was last adjudicated. Therefore, the RO should reevaluate the issue of the Veteran's entitlement to TDIU prior to Board consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Accordingly, the case is REMANDED for the following action: 1. The RO should undertake any additional action it deems necessary in order to properly adjudicate the Veteran's TDIU Claim, including additional VA examinations, as necessary. 2. In adjudicating this claim, the RO should consider the March 17, 2016 VA examination in which the examiner expressed the opinion that the Veteran has not been employed since 2012 due to his chronic back pain. In addition, the issue granted by the Board should also be considered. If the Veteran has received additional private treatment since his March 2016 examination, he should be afforded an appropriate opportunity to submit those treatment records. 3. If the claim is not fully granted, a supplemental statement of the case should be issued on the issue of entitlement to TDIU, and the claims file should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs